United Kingdom Internal Market Bill

Lord Falconer of Thoroton Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

It is a real pleasure to follow the noble Lord, Lord Howard of Lympne, and to have heard the speech of the noble and learned Lord, Lord Judge. They were two incredibly powerful speeches, and I agree with every single word of them—except the bit where the noble Lord, Lord Howard, said that he had voted for Brexit, because I did not.

I very much look forward to hearing the maiden speeches of the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz, which I know will be incredibly good. My noble friend Lady Hayter has given me five minutes of her speech, and it has been agreed with usual channels that I may exceed the advisory limit a bit because I am speaking from the Front Bench.

The Northern Ireland protocol ensures an open border in Ireland to preserve the Good Friday agreement. It does this by creating a regime, legally binding on the United Kingdom as a matter both of domestic law and of international law, whereby goods in or entering Northern Ireland will be compliant with single market rules. On that basis, the border remains open and the integrity of the single market is protected. The protocol also provides that Northern Ireland remains within the customs territory of the United Kingdom and there is unfettered access for goods between Great Britain and Northern Ireland. On 8 September this Bill, including Part 5, was published, giving the United Kingdom Government the express power to break the terms of the protocol. The key foundation of an open border—namely, the legally binding commitment freely entered into by the United Kingdom Government—was fundamentally undermined when the UK explicitly stated that it no longer regarded itself as bound by all the protocol. Law is not a protection when those to whom it applies can choose which particular laws to accept.

Closing the border is ultimately the only way to protect the single market’s integrity if the United Kingdom will not accept its legal obligations, destroying our reputation as a country that abides by the law and depriving the European Union of confidence that the border can remain open. Why? The Prime Minister says that the European Union is negotiating in bad faith. He produces no evidence of bad faith. He says that it is to protect the union and to ensure unfettered access for goods between Great Britain and Northern Ireland. The powers being taken in Part 5 give the lie to that defence. It creates a power to break the protocol only in two specific respects, the first being the requirement which the UK signed up to in the protocol that exit declarations be submitted to the UK Government for goods leaving Northern Ireland. I am in favour of reducing unnecessary paperwork, but to suggest that a requirement for a short summary of goods leaving Northern Ireland is breaking up the union is beyond reason. Secondly, the Bill gives the Government the power to break the protocol by giving the United Kingdom power to identify which state aids apply to Northern Irish-Great British trade, in breach of the protocol. This, I was told by Northern Ireland Office officials, is for clarity. I asked for one actual example of where there was a problem; I was not given one. Those are the only areas where the Government can break the terms of the protocol under Part 5.

There is a third issue, not covered by the Bill, arising out of the protocol, which is what goods are to be regarded as at risk of moving from Great Britain to Northern Ireland and then on to the south. It is about trying to avoid some people paying the tariff and then getting a rebate because in fact the goods did not go into the single market. It is an operational issue. I am in favour of as few people as possible paying a tariff when not due and having to get a rebate, but is it the stuff of law-breaking and threatening the union? Absolutely not. The power to break the protocol in respect of the “at risk” issue is not even included in Part 5. There was a reference in a government statement of 17 September to bringing in further law-breaking measures in the Finance Bill. There will be no Finance Bill this year, so that is no longer in play.

There we have it. Our Government have signalled their willingness to break the law and walk away from the legally binding agreement that guaranteed an open border and peace, to reduce some red tape and resolve two issues that half-decent diplomats could resolve in an hour. It makes no rational sense. When they say that they are not walking away, ignore it. Which party will trust their counterparty who says, “I will pick the terms of the legally binding agreement that I am bound by”?

I have no doubt that this comes from No. 10. It is the product of a Prime Minister clueless about detail, so lacking in grip that he cannot or will not see beyond looking tough toward the European Union, who is flailing around trying to deliver on the false promises he made to Northern Ireland businesses that there would be no additional checks between Northern Ireland and Great Britain and to the hard-line Brexiteers that he would do something about the Northern Ireland protocol. He is a Prime Minister with advisers out of control, looking for political stunts to reinforce the insurgent nature of Brexit, happy to sacrifice the rule of law in the hope of a good culture wars row with remainers and some screeching headlines, and oblivious to the consequences to the standing of the UK, its long-term relationship with the EU countries and the security and safety of those who live in Ireland. The defenders of the rule of law in Government have been forced out, or are too desperate to hold on to the offices into which they have been over-promoted to speak out as they should.

I congratulate Keith Stewart QC on his appointment as Advocate-General, and on the peerage which accompanied it. His predecessor, the noble and learned Lord, Lord Keen, resigned on the basis that he could not square his obligation to protect the rule of law with the policy of this Bill. The Bill has got no better since his resignation. This is not about Brexit—that must happen; it is about destroying one of the foundational values of our country. Without a Government committed to obeying the law, everything is at risk. The law is the ultimate protector. We will invite this House, at the appropriate time, to remove Part 5 of the Bill neck and crop. I hope thereafter that this House will do everything it legitimately can to ensure that it does not return.

United Kingdom Internal Market Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

[Baroness Suttie (LD) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Cormack, and the noble Baroness, Lady McIntosh. Along with the noble Baroness, Lady Altmann, they have shown that there is much agreement about this matter on all sides of the House. The noble Lord, Lord Cormack, always speaks with passion, conviction and experience on matters to do with Northern Ireland, especially on maintaining the progress made since the 1998 agreement. I hope that his wise counsel was listened to by the Government Front Bench today. The noble Lord, Lord Hain, and the noble Baroness, Lady Ritchie, set out very clearly in their powerful speeches why we feel that these amendments are necessary, and I am very glad to have been able to add my name to Amendments 3, 157 and 177. As my noble friend Lord Carlile said so clearly, this is a matter of peace and stability.

I would like to make four points. As the noble Baroness, Lady Ritchie, and the noble Lord, Lord Hain, said, it is frankly staggering that the Government are claiming that they are acting to protect the Good Friday/Belfast agreement through the introduction of this Bill. As has been said by many noble Lords, it is the Government’s own withdrawal agreement and protocol that they are now trying to reverse through measures set out in this Bill. They were either wrong in their assessment of the impact of the withdrawal treaty on the Good Friday/Belfast agreement 10 months ago or they are wrong now. Can the Minister clarify which is the case?

My second point is that ahead of the Brexit negotiations, the European Union carried out an extensive exercise mapping the connections between the Belfast agreement and the single market. Clearly, it is important to recognise that north-south co-operation under strand 2 of the Good Friday/Belfast agreement has moved on extensively since 1998. Can the Minister say whether a similar mapping exercise was carried out by the UK Government on the potential impact on the Good Friday/Belfast agreement ahead of the drafting of this Bill?

My third point concerns the hugely important area of rights, safeguards and equality of opportunity. The Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland have expressed understandable anxiety about the protection of these rights following the introduction of this Bill. Can the Minister confirm that there will be no reduction in the rights as set out in the Good Friday/Belfast agreement and that the relevant obligations in the withdrawal treaty will be implemented in full? Can he also clarify whether an impact assessment was carried out specifically on the potential impact on rights and equalities?

My final point is about the Good Friday/Belfast agreement itself. We are blessed to have many noble Lords from all sides of the House who were directly involved in negotiating that agreement. We have several former Northern Ireland Secretaries, including the noble Lord, Lord Hain, who I have appreciated working closely with in producing these amendments. As my noble friend Lord Alderdice said in the Second Reading debate on this Bill last Monday:

“Those of us who spent many years of our lives negotiating and implementing that agreement had assumed that if we could find a new future for the people of our islands, we could find a way of maintaining our relationships with the rest of the European Union.—[Official Report, 19/10/20; col. 1357.]


This Bill now puts a very real strain on that relationship with our European partners, not least because of the potential impact on the Good Friday/Belfast agreement. When the Government committed to the Northern Ireland protocol, it was on the understanding that it was to

“be implemented so as to maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement”.

Following the introduction of this Bill, do the Government still stand by that commitment?

It is deeply depressing, as the noble Lord, Lord Hain, has said, that Brussels and Washington appear to understand with greater clarity than this Government what is at stake if we start to disrupt the careful checks and balances based on trust and consent that are so essential to the Good Friday/Belfast agreement. That is why these amendments are necessary. We need to have this continuing commitment in the Bill. I look forward to hearing the Minister’s response.

[Lord Falconer of Thoroton (Lab)]

My Lords, it is a privilege to speak in this important debate. I say straightaway that we on these Benches support the principles that have been outlined by my noble friend Lord Hain, and the noble Baronesses, Lady Ritchie of Downpatrick, Lady Altmann and Lady Suttie, who have all put their names to the amendment. The essence of this amendment is that the Government should commit themselves to doing nothing that breaches the Good Friday agreement.

There is no noble Lord who has spoken in this debate who does not agree that a critical part of the Good Friday agreement is an open border between north and south. No noble Lord does not agree that, if the border is closed, one of the essentials of the peace agreement goes—and that threatens security and lives in Northern Ireland. That view is obviously accepted not just by the Democratic Party in the United States of America but by the Republican Party.

The dilemma the Government faced in reaching a conclusion about how to Brexit was how to keep the border open yet, at the same time, leave the single market while giving the European Union security whereby the border between north and south would not be an open door for goods from the north of Ireland flowing into the single market to the south. The solution reached, which the current Prime Minister said was “brilliant” and which he formally endorsed “strongly”, was that goods in Northern Ireland and those brought into it which were at risk of going to the south would be compliant with the single market regulations—both regulatory requirements and the payment of duty. That would be achieved with checks on goods, in so far as necessary, coming from Great Britain to Northern Ireland. That was a good solution to the problem and was, as I said, adopted by the British Government.

It was also agreed that there would be four protections in the Northern Ireland protocol to ensure that the constitutional arrangements would not create difficulty for the unionist community in the north. First, there would be a joint committee to settle the detailed arrangements. Secondly, there would be an arbitration provision if there was a dispute about whether they went too far one way or the other. Thirdly, Article 16 would allow the British Government to impose their own measures, in accordance with the terms of the Northern Ireland protocol, if they were concerned about a threat to society, the economy or cultural links between the two. Fourthly, there is a provision for democratic consent if the people of Northern Ireland no longer wish to comply with the Northern Ireland protocol.

Those were the arrangements agreed by the UK Government. Now the Government say that we may not continue to comply with the Northern Ireland protocol. They are signalling to the European Union, to the Republic of Ireland and to the United States of America that you cannot rely on us in relation to the provision that keeps the border open. This Government have the impertinence to say that it is the European Union that is threatening the border. If you say, having just entered into an agreement, “We may not continue to agree or comply with it”, then of course the other side is going to think that you are not reliable. As it happens, you also trash our reputation as a country by doing it. You make this Government an absolute laughing-stock. First, Brandon Lewis said that they were breaking the agreement. Then the noble and learned Lord, Lord Keen, said that they were not. Then Brandon Lewis said, “Oh yes we are”. Then the noble and learned Lord resigned because of what Brandon Lewis said. Then Michael Gove said, “Maybe we are; maybe we aren’t”. That is the position of the Government of the United Kingdom, which has a reputation for complying with the law.

Could the Minister explain? First, are we breaking the law or not? Secondly, if we are, why are we doing so—or even threatening to—when we entered into those four protections to ensure that there was no pressure on the border between Northern Ireland and Great Britain? Thirdly, can he give the assurance required by my noble friend Lord Hain, and the noble Baronesses, Lady Ritchie of Downpatrick, Lady Altmann and Lady Suttie? We all require that the Government will do nothing that threatens the Good Friday agreement. Finally, will the Minister explain how it does not threaten an open border to say, as the British Government do, “We may not stand behind the Northern Ireland protocol”?

United Kingdom Internal Market Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 28th October 2020 Lords Chamber

[Lord Fox (LD)]

My Lords, this has been a relatively short debate in terms of the Bill so far, but it has raised some fundamental issues which beg some quite deep and considered answers from the Minister.

When the noble Lord, Lord Inglewood, brought up Cumbrian cattle-driving and we had the noble Lord, Lord Liddle, to follow, I felt we might have had quite a long discussion around that, although we did not. The noble Lord, Lord Inglewood, in characterising Defra as an English department, brought out the Janus face Secretaries of State have in being not only Secretary of State for the United Kingdom but in most cases also Secretary of State for England. Herein lie some of our problems and uncertainties.

The noble Baroness, Lady Hayter, set out and explained very well the issues surrounding mutual recognition. In the noble Lord, Lord Rooker, this House has the benefit of someone with fantastic knowledge and it is important to listen to him. Animal feed is an important area, although it is not always clear. If I may beg your Lordships’ indulgence for a short anecdote, in the mid-1970s our farm was subject to one of the small outbreaks of anthrax, which is very rare—I found the animal that died of it, and it was not a pretty sight. We were put into quarantine—something like lockdown—and it was tracked down to the importation of cheap beans from India. That is why the control of animal food in this country is really important.

In terms of animal feed on the island of Ireland, I was struck that the Government have already exempted the electricity market there—the Minister and I debated this on a statutory instrument—from the overall UK market. They have done that because of the integrated nature of electricity on the island of Ireland; it is an entirely sensible move, of which we approve. It seems to me that animal feed is very similarly integrated and would benefit from a similar island-of-Ireland-wide process. The Minister might like to think about that going forward.

As usual, the noble Baroness, Lady McIntosh, asked a series of excellent and important questions. We need answers to them to understand the objectives of the Bill.

In Amendment 21, the noble Baroness, Lady Finlay, seeks what I think many of us seek to do: to look at this, as somebody mentioned, through the other end of the telescope. This is turning things upside down. Why do we not start with the common frameworks and what is currently working around the devolved authorities and legislate only what needs to be done to create the market we all want? My noble friend Lord German’s twin-track, two-road approach is a very good example. Where is the gap? How do these twin tracks come together? There is no explanation anywhere of how the common frameworks and the Bill are supposed to work together. The only conclusion I can draw is that the common frameworks are allowed somehow to dwindle, because the Government seem to be putting an enormous amount of energy into the Bill.

As usual, the noble Baroness, Lady Noakes, is right: we need to facilitate trade and make it as frictionless as possible across the UK. It is a shame we cannot make it frictionless across the whole of the European Union. The fact is, we have devolution, and the internal market Bill must respect that. At present, it seems that it does not. The noble and learned Lord, Lord Hope, made this point very ably.

As usual, my noble friend Lord Purvis came up with a series of important questions, including Scotch whisky-based ones. He came up with the revelation that there is a complete and absolute internal contradiction in the Bill. The Government brought forward an amendment that causes the following to happen: if England decided to set up its own approval system and started approving active chemicals banned in the EU, Scotland could refuse them. Conversely, Scotland could presumably go further than the EU ban and ban substances which England approved. That is the Government’s position, based on an amendment they brought to the Commons. However, he Minister has said that we must stop this happening, and that the Bill will do that. Something is not right, and the Minister needs to explain what is wrong.

The telling point made by my noble friend Lord Purvis and other noble Lords, including the noble Baroness, Lady McIntosh, is that without clear definitions, it will not be the Government causing the race to the bottom—it will be companies taking this to the courts. That is why we expect from the Minister a very detailed answer to these important questions.

[Lord Falconer of Thoroton (Lab)]

I strongly endorse what has been said by the noble Lord, Lord Fox. This is an incredibly important and rich debate in which detailed answers are required. It has been a very powerful debate because it has identified a range of problems, both of principle and detail, suggesting that either the Bill has not been properly thought out—subject to what the Minister says in answer—or that there are fundamental problems with it.

I strongly echo what was said by the noble Lord, Lord Inglewood, and endorse what the noble Baroness, Lady Noakes, said—we want frictionless trade as much as possible. I do not know about the noble Baroness, but my experience of business is that if every five minutes one is in the courts trying to work out what is allowed and what is not, that is the classic recipe for a lack of certainty. This Bill, as said so accurately by the noble Lord, Lord Purvis, is creating a whole range of private rights not to be discriminated against, to be treated the same in one place as another. Unless the Bill is clear and has a practical impact, it will be an absolute goldmine for lawyers. It is therefore critical there is confidence this has been properly thought through and the principles work. I am dubious— I am not talking about Part 5 but about the internal market provisions.

We had a very important debate on Amendment 7 about imports, tabled by my noble friend Lady Hayter. My noble friend and the noble and learned Lord, Lord Hope, asked why the devolved Assemblies or Parliaments are excluded from having any voice on what is imported. We were treated by my noble friend Lord Rooker and the noble Lord, Lord Inglewood, to an explanation of all the drawbacks of including food and animal foodstuffs in the arrangements. They gave a devastating series of reasons why these are wrong. Could we have detailed answers for the point made by the former chair of the Food Standards Agency? I ask the Minister to convince us if he can that my noble friend was wrong and the Government are right in the way they have approached this.

The amendments which were very powerfully introduced by the noble Baroness, Lady McIntosh, indicated legal issue after legal issue. I draw attention to two where an answer is important. First, how do the measures already in place apply, and why are they better than the common frameworks approach? Secondly, what is meant by substantive change, rather than significant change? That feels like an issue that could be litigated over for a long period of time.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the noble Baroness, Lady McIntosh of Pickering, for putting down this question. The Law Society of Scotland makes a valid point about why there would be a new, and potentially competing, definition of sales between this legislation and the Sale of Goods Act. I will just ask two supplementary questions. The first is a genuine probing question about the Government’s view. Given that many sales are conducted online now—and probably the vast majority in the coming years—what is the Government’s view, with regard to this legislation, on the location where an online sale takes place and how that is covered by the definition?

The example given by my noble friend Lord Fox was about phasing in the banning of coal in England, but not yet in Wales or Scotland. It was a genuine question, and it was a shame that the noble Lord, Lord Callanan, did not have a chance to answer. On a reading of this legislation, someone in England who is banned from purchasing coal for use in their household in England would, under the definition of “sale” in Clause 13, be able to buy household coal from a Welsh or Scottish coal merchant, at a local or online sale, who would then be able to deliver. It would be good if that could be clarified, even if the Minister needs to write to us about it. It is a genuine issue to highlight.

My second question links to this amendment more directly. The noble Baroness, Lady McIntosh of Pickering, and other noble Lords who have Scottish legal qualifications will be familiar with this. I see the noble and learned Lord, Lord Falconer, on the Opposition Front Bench. Sales in Scotland often have a cut-and-paste element, stating that the law of contract of England applies. Of course, it does not in Scotland. That tends to be viewed as not having effect, and that the cut and paste is not accurate, as contract law is different north of the border. When it comes to the definition of sales through a contract, if the sale of an imported good is conducted within Scotland, is it considered local or not? If that is the case, does the contract law of Scotland apply under this legislation or is the default the law of contract for England? If the latter, that is problematic for transactions carried out north of the border.

[Lord Falconer of Thoroton (Lab)]

I am obliged to the noble Baroness, Lady McIntosh of Pickering, for raising these points. There is a raft of unanswered questions here. It is late at night, so I will try to focus on only the most important. Am I right in assuming that the market access principles, recognition and discrimination, apply to the rental and gifting of goods? If they apply to the rental of goods, what is the policy purpose? What is the purpose of applying them to the gifting of goods and what does it mean in practice? For example, does it apply to statutory requirements for the provision of food by food suppliers that are subject to statutory requirements?

The second head of issues concerns the position of public bodies engaged in commerce. I understand, but only from the Explanatory Notes, that the supplying of drugs by the NHS, even though it does so in a commercial context from time to time, is not covered by the Bill. Is this right? I have particularly in mind Clause 14(2), which says:

“‘Sale’ does not include a sale which … is made in the course of a business but only for the purpose of performing a function of a public nature.”


I read in the Explanatory Notes that that means the NHS supplying drugs. If that is right, what does the completely impenetrable Clause 14(3)(b) mean when it says:

“Subsection (2)(b) does not exclude a sale which is … not made for the purpose of performing a function of a public nature (other than a function relating to the carrying on of commercial activities)”?


Can the Minister explain this to the House? It matters quite considerably because I suspect it will cover a great deal of commercial activity performed by public bodies.

Thirdly, and separately, what is the position in relation to the goods that are made partly in one part of the United Kingdom and partly in another—for example, cars on an assembly line that crosses borders, or planes or high-tech equipment where parts from elsewhere come into it? As a result of Clause 15(3) and (4), is there a separate application to each of the individual components or does one look only at the completed goods?

Lastly, and this is perhaps the most significant, how do the Government envisage that this will operate? My understanding of Clause 6, on the non-discrimination principle, is that where a statutory or regulatory requirement in one part of the country discriminates indirectly, making the sale of those goods disadvantageous in another part of the United Kingdom, that disadvantageous provision can be supported only if it has one of the legitimate aims identified in Clause 8(6).

Let us take minimum alcohol pricing in Scotland. This is a relevant requirement which indiscriminately discriminates against incoming goods on the basis that alcohol brought into Scotland from England by a supplier is the subject of a disadvantage as defined in Clause 8(2); namely, minimum pricing makes it less attractive because the goods are more expensive to buy. As I understand it, this can be justified only if that minimum pricing statutory requirement has one of the following aims:

“the protection of the life or health of humans, animals or plants”

or

“the protection of public safety or security”.

Am I right in understanding that if, for example, a large supplier of alcohol from England into Scotland wished to challenge minimum alcohol pricing, he could do so by taking his buyer to court? There would then be a private law action in the courts of either Scotland or England—could the Minister tell me which it would be, assuming that the minimum alcohol pricing was in Scotland and the supplier was in England?—and the courts would have to decide whether or not minimum alcohol pricing was a regulation that had a legitimate aim.

The consequence of this Act—which is quite tricky to understand and is perhaps unthought-out—is that we in Parliament are handing over to the courts the determination of policies such as minimum alcohol pricing. That seems at the moment to be the consequence of the way that the Bill is drafted. I cannot believe that that is what any sensible Government would wish. Could the Minister please explain how Clause 8 works? I hope she can explain why my conclusions on the basis of Clause 8 are wrong—I really hope they are.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I thank noble Lords for their contributions to this short debate. There were a lot of questions in there, some of which I will just have to write to noble Lords about because my briefing does not cover the whole gamut of what was asked and I would rather give a full answer.

Amendments 66 and 67 are relatively technical amendments relating to the definitions of “sale” in the Bill. I am willing to provide further details on this issue and discuss any concerns that my noble friend has. Amendment 66 would narrow the definition of “sale” in the Bill. It would narrow the types of supply-related activities that a trader could carry out and benefit from the market access principles. It would therefore reduce the effectiveness of the market access principles in reducing barriers to trade across the UK.

The United Kingdom Internal Market Bill is intended to provide a structural underpinning and additional protections to the status quo of intra-UK trade, ensuring certainty for businesses and investors in the form of a safety net of regulatory coherence. We should not cut holes in the safety net. The definition of “sale” that we have will ensure that businesses can continue to trade in a frictionless way, no matter how they are supplying their goods. It also seeks to align broadly with the scope of the “placing on the market” concept that is central to our existing goods regulation.

I say to my noble friend Lady McIntosh that the Sale of Goods Act 1979 was a very UK-specific way of defining a sale. The EU style of definition that has been brought into our legislation is much broader, and there is a need to ensure that the same principles align across the whole legislative piece. “Placing on the market” is therefore included in this as a concept but not in the Sale of Goods Act. In short, the Government cannot support this amendment, and I ask my noble friend to withdraw it.

Amendment 67 would exclude the supply of goods free of charge from the market access principles. It would include the rental of goods, as the noble Lord, Lord Purvis, pointed out. That would lead to the strange outcome that a good could be lawfully sold under the mutual recognition principle in a part of the UK for only a penny but could not be supplied there under that principle free of charge. This would affect a range of items such as commercial samples, marketing merchandise or introductory offers, and would reduce the effectiveness of the market access principles in reducing barriers to trade across the UK.

I was asked a question by the noble Lord, Lord Purvis, when we were talking about coal. I think the distinction my noble friend was trying to make was between a ban on the sale of coal and a ban on its use. As in his example, you could legally buy it in Wales, but you could not then legally use it in England just because you bought it over the border due to the difference in rules. For these reasons, I ask my noble friend not to move Amendment 67.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

I remember the noble Lord asking that question earlier in the debate. I am more than happy to write to him on that and on the other issues that I have not been able to cover in my response.

[Lord Falconer of Thoroton (Lab)]

I am not complaining, but the Minister did not try to answer any of my questions, so I would like a comprehensive response.

I am really interested in whether the Government envisage that in private law actions the courts will be resolving whether regulations that are discriminatory on the face of it for public purposes, as defined in the Bill, are valid—that is, whether they are for a legitimate aim. If they are, then the consequence is that Parliament is subcontracting decisions on these policy issues to the courts. I am not asking the Minister to deal with the other issues, but if she could deal with that one now, I would be grateful. If she cannot, because the answer is not yet known or has not been worked out, I would be grateful if she could indicate that. This issue seems to be absolutely key to the question of certainty for business. If where we come out at the end of the Bill is the courts system deciding on the legitimacy of a whole range of regulations, I am sure that that would not be what the Government would have wished. That is why the common frameworks process looks so much more attractive.

[Baroness Bloomfield of Hinton Waldrist (Con)]

Having looked at that question, I would rather write to the noble and learned Lord giving a full answer—but I will do so very speedily, before we come to the next stage.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister from the noble and learned Lord, Lord Falconer of Thoroton.

[Lord Falconer of Thoroton (Lab)]

I go back to the very interesting answer that the Minister gave on the coal example. Let us assume that the coal example, which he described as being a prohibition on sale but not use, did not come in a pre-existing requirement and that it had been entered into after this Bill became law. I would be right, would I not, in assuming that such a requirement would offend against the non-discrimination principle under Clause 8? It is obviously a disadvantage to be able to sell coal to people who cannot use it. In those circumstances, it is valid only if that was a provision entered into after the Bill became law if such a provision was justified by one of the legitimate aims identified in Clause 8(6). Would I be right in assuming that? Would I be right in assuming that the question of whether the ban on the use of coal survived would depend upon a private law action between the supplier of the coal and the buyer of the coal?

[Lord Callanan (Con)]

I do not think the noble and learned Lord is correct in his assumption, but it is a detailed legal point, so I will take further advice and reply to him in writing.

United Kingdom Internal Market Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd November 2020 Lords Chamber

[Lord Naseby (Con)]

My Lords, it is a little disappointing that, in a Bill that is vital for the future of our country, there seems to have been some misunderstanding; somehow or other the key role of patent and trademark attorneys has been misunderstood. They are vital to the future of our country because, as it happens, we are quite good at producing ingenious new products, processes and systems of manufacture that are patentable. Equally, we are good at marketing products that require trademarks. Here is an area where we really are at the forefront of Europe’s activity—and, many would say, the world’s—so this is crucial, and we need to be clear that it is going to operate properly without any hiccups.

In my judgment, we need to defend some of our trademarks in particular. When we are marketing on our own outside the EU, I believe that we will get challenges. I have worked overseas and seen it happen there, and I do not see why it might well not happen here in the UK. As we move forward on that challenges dimension, I recall that, as I think one or two of my colleagues know, I worked in south Asia for two years. When I was in India, there was a system of mutual recognition for trademarks in certain categories of products. I wonder whether that is an element of the new deal we have done with Japan.

On my final point, I declare an interest in that I have a son, a lawyer, working in the Cayman Islands—in other words, the Overseas Territories. Given the confusion that we have had today, I am not entirely clear whether in the Overseas Territories a qualified patent lawyer or trademark attorney, who is a UK citizen qualified in the law and in whatever elements are needed for such attorneys, is able to operate although they are not actually in a part of the UK.

[Lord Falconer of Thoroton (Lab)]

My Lords, intellectual property lawyers, patent agents and attorneys are incredibly important for the future. I thoroughly endorse the remarks made by the noble Baronesses, Lady Bowles and Lady Neville-Rolfe, and my noble friend Lord Smith of Finsbury.

Honestly, confidence in this Bill was weak to start with. That mess-up just then on patent attorneys was appalling, and it made me look at the rest of Part 3. Could the Minister first of all identify what the problem is that Part 3 is dealing with? We had a clue between 11.30 pm and 11.45 pm on Wednesday evening when the noble Baroness, Lady Scott of Bybrook, who sadly is not in her place, said the following:

“The purpose of the professional qualification provisions in the internal market Bill is to ensure that professionals can, in most cases, access their profession in all parts of the UK, by ensuring that there is an overarching system for recognition.”—[Official Report, 28/10/20; col. 375.]


Clause 22 says that where you are qualified in one place, you can be qualified in another, while Clause 25 says that Clause 22(2) does not apply to existing provisions. Let us be clear what is happening here: the Government are saying that we are not making any change to the existing position in relation to professional qualifications, and as far as I am aware—and this is nothing to do with the EU—there is absolutely no problem about the current position. The effect of Clause 25(3) is that these provisions do not apply to any change in the future. Am I right about that? They are making no change for the past but they are bringing in these provisions in relation to the future. Why is that, when there is no problem about the past or the future? The Government are causing problems everywhere with this. I ask them to explain to the House and the wider public why on earth they are doing it. They have messed up the one area that we have looked at so far. Why should anyone have any confidence in this Bill?

On a separate point, I refer the Minister to what the noble Lord, Lord Dunlop—on the government side—said on day one in relation to this matter:

“The timetable for the Bill appears to be predicated on the end of the transition period on 31 December this year, but what is the real risk of regulatory divergence between then and the completion of the common frameworks process in 2021? The House is aware that the European Union (Withdrawal) Act 2018 already confers on Ministers so-called Section 12 powers to freeze devolved competence in relation to EU retained law.”—[Official Report, 26/10/20; col. 88.]


So, if there is any problem about this, it can be dealt with by the Government’s Section 12 powers. That applies not just to this but to wider issues.

Why are the Government bringing forward such an obviously unthought-out Bill that is doing damage to what—and I say this with respect to the noble Lord, Lord Naseby—even the noble Lord, Lord Naseby, thinks is a mess-up, and he is a supporter of the Government’s Bill? Why on earth are they messing everything up like this? Could they please give an answer to what the noble Lord, Lord Dunlop, said on day one? Is he right? If so, the urgency goes.

[Lord Callanan (Con)]

I thank all noble Lords who have spoken in this short debate on this important subject. I shall start by replying directly to the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Clement-Jones, who spoke about Part 3 and why we felt the need to bring these proposals forward. The Bill is intended to ensure that divergence in professional regulation between the four nations of the UK does not increase barriers for professionals living and working in different parts of the UK. As our economy continues to develop and new sectors emerge, it is possible that new regulated professions will be created and there may be changes to existing qualification requirements that could make it more difficult to access the profession in another part of the UK. These new professions may well be crucial to the UK’s economic future. As in other areas, we do not want barriers to trade across the UK in these sectors. Internal market provisions will apply where part of the UK regulates a new profession, access to which is limited to those holding certain professional qualifications or experience. The provisions will also apply to existing professions where there are changes to the requirements for the qualifications or experience needed in order to access the profession concerned. Currently, while the recognition of professional qualifications between the four nations can and does occur, there is no overarching framework that ensures that it does. The Bill creates such an overarching framework to guarantee that recognition of qualifications between the four nations will be possible and barriers will be minimised.

I am happy to give the noble Lord, Lord Smith, and my noble friend Lady Neville-Rolfe the specific assurance they asked for: nothing in the recognition provisions of the Bill, including the exclusion, affects the current situation. IPReg will continue to be able to decide whether and how trademark and patent attorneys should be allowed to carry out the regulated legal activities that it is designated to regulate in all the different parts of the UK.

The government amendment aims to bring patent and trademark attorneys in line with other legal professions and to place them outside the scope of the recognition provisions of Clause 22 of the Bill. Legal professionals have been excluded from the scope of the provisions on the recognition of professional qualifications in acknowledgment of the different legal systems that exist in the UK. This will ensure that the regulation of and access to these professions, including trademark and patent attorneys, are not affected in any way by the mutual recognition provisions of the Bill and will be completely unaffected. That is why we need Amendments 107 and 108.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

I have received requests to speak after the Minister from the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Fox.

[Lord Falconer of Thoroton (Lab)]

The noble Lord, Lord Callanan, referred to the idea of new professions being invented. If this happened, there would be a professional body that would need government recognition in some form. Could he give us an example, perhaps, of a new profession emerging without a professional body in relation to which there is a substantial risk? If there is no such example or evidence, it is incredibly unconvincing. The second and separate example he gave was an existing profession giving rise to a particular requirement that would create a barrier to entry in one part of the United Kingdom for another. Could he give an example of when that has happened in the past?

[Lord Callanan (Con)]

By the very nature of it being a new profession or qualification, it is quite hard for me to give examples of what might happen in the future. There are all sorts of new technologies; even in the noble and learned Lord’s legal profession, there may be new technologies, ideas and proposals that will come forward. There is the whole world of artificial intelligence or gene editing—there is a massive range of new and potential professional areas, bodies and qualifications that may come forward. That is the point: we want the current situation in many of these professions to be unaffected, but, in the case of new professions, it is entirely possible that the individual nations of the UK might seek to regulate them differently, and we want no new barriers to trade to emerge.

--- Later in debate ---

[Lord Fox (LD)]

My Lords, I am grateful for the quality of this relatively short debate on a really important issue. In his speech, the noble and learned Lord, Lord Morris, emphasised the need to avoid a threat to the devolution settlement. When the noble and learned Lord, Lord Mackay of Clashfern, stirs, and tables amendments, it is important for us all to listen. Clearly, he is very concerned about the route that this Bill is taking, as is the noble Duke, the Duke of Montrose, who articulated strong reasons for a consultative and consensus approach to regulating the internal market of the United Kingdom. I am also grateful to him for bringing up again the Act of Union, because this is a live treaty; it still exists and reflects on the issue which we are discussing. We should always remember that.

The noble and learned Lord, Lord Mackay, talked about the need for the devolved authorities, or the Joint Ministerial Committee, to be involved in the nitty-gritty of the market. My noble friend Lord Purvis of Tweed set out the dangers and the discontinuities within the current state of the Bill that make that process impossible. Therefore, it is important for the Minister to explain how this will work, because there are so many missing pieces in a jigsaw puzzle which, frankly, still does not have a picture, and which make it very difficult for us to understand what the Government are seeking to achieve and why.

My noble friend Lord Purvis asked many questions and he raised the issue of triggering disputes. The issue of when a dispute is triggered is central, as is the one which has surfaced in many different debates: the mechanism for resolving disputes. The noble and learned Lord, Lord Mackay of Clashfern, suggested one way; perhaps the Minister can comment on that.

My noble friend Lady Humphreys and other noble Lords have pointed out that the JMC, and its variety of committees, seem to have stalled, not because of any lack of faith from the devolved authorities but because of the Prime Minister not convening a meeting of the Joint Ministerial Committee (Plenary). Can the Minister explain the delay and say when the next meeting will occur? My noble friend Lord Purvis also raised the important question of structure. Where does this all fit in with the JMC’s current operations?

It is the Government who have sought to drag the CMA out of its current area of reserved issues and focus it on devolved issues. I say to the noble Lord, Lord Naseby, that it is not this amendment, but the Government, that have decided to do that. They are pulling the Office for the Internal Market into an as yet undefined dispute role. It is very clear, as the noble and learned Lord, Lord Mackay, set out, that if advice and reports are being submitted, then the JMC must be party to the same information that the UK Government are getting. It is also clear that we have no real idea of the Government’s intention for the operation of this Bill.

[Lord Falconer of Thoroton (Lab)]

These are important amendments that reveal yet another problem in the Bill. First, they deal with the role of the CMA, which under this Bill is intended to monitor and give advice on the working of the internal market. As I understand the way that Section 30 envisages that the CMA will operate, it will authorise an Office for the Internal Market task group to set up groups to look at particular issues. The amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, seeks to ensure that, before such a task force is set up, there is confidence that the appointment of the task force, the terms of the task force and what it is doing have broad buy-in from all the relevant parts of the United Kingdom. Can the Minister explain how, without the amendment tabled by the noble and learned Lord, Lord Mackay of Clashfern, this was currently going to be achieved?

For example, the CMA’s parent department is the business department, which is a UK government department. The CMA has a number of board members and panel members; how many of them at the moment have experience of Scottish, Welsh or Northern Irish business issues? As the Bill makes clear, the CMA will be appointing a task force where there is a difference between one part of the United Kingdom and another regarding regulatory or statutory requirements. On what basis do the Government envisage these task groups being appointed and set up? Is there any objection to adopting the noble and learned Lord’s suggestion of how to ensure that you get all the other parts of the country involved, as opposed to only BEIS or the CMA? If not, can the Minister put forward an alternative suggestion?

United Kingdom Internal Market Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

[Lord Fox (LD)]

My Lords, it is a great honour to be speaking towards the end of this long debate, in which so many distinguished, wise and opinionated speakers have held forth. This debate complements the one we heard at Second Reading, which ended with an overwhelmingly large regret vote. Today, we have heard the legal reasons for objecting to Part 5 of the Bill. They were set out clearly by the noble and learned Lord, Lord Judge, and have been supported by legal Peers and others across the Floor. We also heard speeches explaining the effects of this Bill across the island of Ireland; I was particularly moved by the words of the noble and right reverend Lord, Lord Eames.

I am going to look elsewhere and focus on the politics, my subtitle being: “What were the Government thinking when they drafted this Bill?” It is a rhetorical question as I do not expect the Minister to answer. In today’s media round, Ministers were sent out to plug No. 10’s messages, one of which was that this Bill gives legal certainty. Well, it is certainly illegal but, as we heard very eloquently from the noble Lord, Lord, Carlile, the only certainty it brings is that the UK cannot be trusted.

We heard at Second Reading how little faith the EU had in the Prime Minister even before he climbed over and clawed past his predecessor to become Prime Minister. This Bill now confirms the European Union’s view and cements its distrust of the negotiation process. Does the Minister suppose this distrust has made sealing a UK-EU trade deal easier or harder? If it were going to help, we would, I suggest, have seen some movement by now; yet we still do not have anything that even this shameless Government can dress up and brand as a deal.

As we have heard, there is now a seismic shift across the Atlantic where the ground is getting very shaky for the PM. He is losing his perilous foothold and scrambling around as the UK slips down the future President’s to-do list. We should not be surprised. A law-breaking Government might have impressed President Trump but, when there is an Irish-American President in waiting, this Bill is not a good look. George Eustice, sent out this morning to shield the Prime Minister, was quick to say that if Joe Biden had read the Bill, and not just reports of the Bill, everything would be all right. This is patronising. It is patronising to the future President of the United States, a man who has always taken a very close interest in Irish issues, and it is not only patronising but wrong. When the President-elect read this Bill, he saw what we see: a direct undermining of the Good Friday/Belfast agreement.

In political terms, this Bill threatens the EU and US free trade deals—the Government’s two stated paramount trade objectives—and it threatens the stability in Ireland, one of the great political achievements in my lifetime. It is not just bad law; it is absolutely terrible politics.

In a few minutes, I expect the Minister to mount a defence. He will claim that Part 5 of the Bill is vital, which my noble friend Lord Newby dealt with very eloquently. I doubt that the Minister will repeat the Northern Ireland Secretary Brandon Lewis’s statement that this Bill will break the law because—and I am sorry to Members opposite, all of whom appear to be non-lawyers pronouncing on the law—it is the Government’s settled position that this breaks the law. In this regard, I am happy—or unhappy—to say that the Government are right: Part 5 allows the Executive to break the law, when they choose and without restraint. That is why the whole of Part 5 comprises a legal affront, which is a huge political mistake.

The Committee will shortly be asked whether we want Clause 42 to stand part of the Bill. Noble Lords on these Benches will be voting “Not content” when that question is put, and we will continue to vote “Not content” when each clause is put forward. It is wrong and we are not content that the Government should bring the whole country into disrepute, not content that we should cede political leverage in the world at large, and not content with the wider implications of Part 5, not least on the island of Ireland.

[Lord Falconer of Thoroton (Lab)]

It is a pleasure to follow the noble Lord, Lord Fox, who has been a tower of strength throughout the course of this very complicated Bill. I join other noble Lords to express my deep sorrow at the untimely death of Rabbi Lord Sacks, who made a very major contribution to thought, spirituality and life in this House.

The noble Lords, Lord Howard of Lympne, Lord Empey and Lord Pannick, the noble and learned Lords, Lord Clarke of Nottingham, Lord Mackay of Clashfern and Lord Judge, the noble Baronesses, Lady Ritchie of Downpatrick and Lady Bennett, all Labour’s Members, all the Lib Dems, the noble and right reverend Lord, Lord Eames, the noble and gallant Lord, Lord Stirrup, the right reverend Prelate the Bishop of Leeds and the most reverend Primate the Archbishop of Canterbury constitute, by any standards, a pretty broad church—broader than you normally see in this House. Sadly, none of them is Marcus Rashford and therefore guaranteed to get a U-turn. Nevertheless, they are a powerful group and all say the same thing: first, pull back from making the United Kingdom an international law-breaker; and secondly, do not threaten to break the Northern Ireland protocol, which ensures an open border on the island of Ireland and promotes peace through the Good Friday agreement.

Today, tomorrow and in the weeks, months and years to come, the United Kingdom will depend on our international relations with the United States of America, the European Union and the rest of the world for security and trade, to fight the climate emergency, to co-ordinate the search for and distribution of a vaccine, to fight this and future pandemics and to co-ordinate the world’s response to the massive economic downturn we are in. We will need international agreements to do it. It is hard to imagine an act more damaging to the United Kingdom’s national interest than to place the UK beyond the pale of law-abiding nations, which is what the Government wish to do.

I strongly urge the Government to take the lifeline that the House of Lords is offering and accept that these law-breaking clauses were a mistake. The Government should say that these clauses will never again see the light of day. Please think about what the Government are embarking on with these clauses. If a free trade agreement and a settlement of the Northern Irish protocol issues are reached, then these clauses would never be needed. Suppose the Government do not reach agreement on free trade and the operational actions of the Northern Ireland protocol. If these clauses were ever used, they would guarantee, as President-elect Biden has said, that the United Kingdom would go to the bottom of the pecking order in Europe with the United States of America.

We have gone from popular United Kingdom to Billy No Mates in 10 weeks from 8 September as a result of the publication of this Bill. What is the justification for this disastrous proposal? Three have been given in the course of this debate. First, the noble Baronesses, Lady Hoey and Lady Fox, and the noble Lords, Lord Dodds, Lord McCrea, Lord Lilley, Lord Moylan, Lord Shinkwin and Lord Morrow, all gave variations on an argument that the Northern Irish protocol is a bad deal and they wished it to be renegotiated.

I respect those who did not like the Northern Irish protocol but it was entered into by the House of Commons with its eyes open. The House understood that the effect of the protocol was that to secure an open border, goods coming from Great Britain to Northern Ireland had to be checked to ensure that they complied with the single market regulations. Only in that way could the Republic of Ireland be sure that goods coming through the border would comply with the rules of the single market and you would not need a border as a result.

People may not like that. They may think that the checks that take place between Great Britain and Northern Ireland are inimical to the idea of Great Britain and Northern Ireland staying together, but that was the choice that the Parliament of this country made. A number of noble Lords said that democracy and parliamentary sovereignty justify this, conveniently forgetting that it was parliamentary sovereignty that led to the United Kingdom signing up to these international agreements. It was this Parliament that decided it and any call to parliamentary sovereignty is so misguided.

The second proposition advanced is that democracy demands that we allow this agreement, the Northern Irish protocol, to be broken. We are lucky to have in the House of Lords people who tell us how democracy should be interpreted. The December 2019 general election involved the winners, the Tory party, saying, “Agree to the withdrawal agreement and let us get Brexit done.” The country agreed to that. It agreed to the agreement that currently exists, not one that is about to be changed. The imprecations that we should be entitled, as a matter of parliamentary sovereignty or democracy, to change the agreement are very misguided.

--- Later in debate ---

[Noble Lords]

Order!

[Lord Falconer of Thoroton (Lab)]

Anybody who says there is no debate in this place because we are complying with the coronavirus rules is very misguided and rather cross.

The third line of defence comes from the noble Baronesses, Lady Neville-Rolfe and Lady Noakes. They say, “This is just a sensible protective measure. Suppose there was to be a breach subsequently: here we are—it is in place”. I have no sympathy with that view at all, for two reasons. First, there is not a sliver of evidence that the European Union is not acting in good faith. One would have expected it to have been produced by the Government if that was the case. Secondly, the points that both noble Baronesses relied on are not covered by the terms of the internal market Bill. The at-risk provisions, for example, are not available to the Government to correct by the terms of the internal market Bill. There was a reference to the fact that they might be covered subsequently by the Finance Bill but, as the noble Baronesses know, there is to be no Finance Bill this year. Their defence has no foundation in fact.

I really hope the Government see sense quickly. This part of the Bill is the most massive own goal, but it is much more than simply the operational aspects. At its heart, this Bill breaks faith with one of the most fundamental parts of our constitution: the rule of law. It is not just the appalling position it leaves us in in the world; it is what it says about us, the United Kingdom. I proudly defend and believe in the values of my country. The rule of law protects each one of us, rich or poor, strong or weak, from all forms of oppression. We should not be, to use the words of the noble and learned Lord, Lord Judge, “complicit or supine” in this toxic, casual, un-thought out, arrogant abandonment of our values. We should vote against every one of those vile clauses in Part 5 tonight and, if necessary, again and again, to persuade the Government that this should never become part of our law.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I too begin by humbly paying my own tribute to Lord Sacks. His reflective witness to faith was, and will remain, an inspiration to very many people he never knew.

As your Lordships are unusually, as I understand it, intending to terminate all discussion on these clauses in Committee; and as some, including the noble and learned Lord, Lord Falconer, opposite have somewhat brazenly—some people in the other place may consider—stated that this House may not be prepared to consider them again if invited to do so; and as, unusually for your Lordships’ House, some of these clauses have not been considered in detail, your Lordships must forgive me if I take some time to explain the rationale. I would, of course, like to thank all those who have contributed to the debate; although I agreed with the minority rather than the majority, I have listened carefully to them all and respected them all.

Lest there be doubt, let me put it beyond peradventure. The United Kingdom has stood, does stand and will stand behind the Belfast/Good Friday agreement. Nothing in this Bill is conceived to undermine that agreement. The United Kingdom Government intend no change to the status of Northern Ireland. The United Kingdom Government will never seek or support a hard border on the island of Ireland.

Equally, the United Kingdom Government will never accept that a foreign power, in the form of the EU, could unduly disrupt the free movement of goods within the United Kingdom’s customs territory. It is solely and specifically against such an unwanted, disproportionate and unnecessary potential intervention that the parts of this Bill, to which so many of your Lordships object, are designed. They are designed, as the minority of speakers in this debate—who were listed by the noble and learned Lord, Lord Falconer—have noticed, to protect east-west links, with full respect for the interests of the EU to maintain its single market, and designed to protect the basis of the Belfast agreement.

There has been significant and robust debate about Part 5, both in this House and the other place, ended with an extremely robust statement by the noble and learned Lord, Lord Falconer. The debate has focused predominately on the safety net or backstop provisions in Clauses 44, 45 and 47. However, Part 5 of the Bill contains crucial provisions which are not safety net provisions but protections that we want to apply in all eventualities. These provisions safeguard Northern Ireland’s place in the United Kingdom’s customs territory and legislate for unfettered access for Northern Ireland goods to the rest of the UK market, which is clearly provided for under the protocol. They also codify in legislation the existing practice where state aid is notified to the European Commission by the Foreign Secretary via the UK mission in Brussels.

I understand that some noble Lords intend to divide the House to remove the whole of Part 5, and the noble and learned Lord, Lord Judge, made that clear today. However, if we go to a Division, there will be at least two groups with different issues. As your Lordships consider your votes, I urge each of your Lordships to consider each clause on its merits, and consider the signal that striking each out might send to the people of Northern Ireland. I listened carefully to what the noble and learned Lord, Lord Judge, said, and I could not hear a case made for a link between Clauses 42 and 46 with what he sees as the offending clauses. I therefore do not see how they are dependent on one another.

As for Clause 43, I must disagree with the noble and learned Lord. I am clear that it stands entirely on its own as a means of safeguarding unfettered access to the UK market. This Government have repeatedly committed, and remain committed, to precluding checks or controls on qualifying Northern Ireland goods to the rest of the UK market. This is what the Northern Ireland Executive have asked for, what Northern Ireland businesses right across the spectrum from agri-food to manufacturing have asked for, and what the withdrawal agreement preserves and protects. Helping to give that effect is the sole purpose of Clause 43. It was not drafted to be interlocking or interdependent with any other clause in the Bill. If no other clause in this Bill were passed, the Bill would be able to function and stand alone as a means of protecting access for Northern Ireland businesses to—as we have heard—their most important market. To that end, while it does refer to Clause 47 in Clause 43(3)(b), that is only as part of spelling out that the clause in fact allows checks where applicable international obligations require them.

Given the broad support in Northern Ireland for unfettered access to their businesses’ most important market—and I hope that noble Lords have been listening to the speeches made by some of those who are here from Northern Ireland—it would be hugely disappointing for them and for businesses in Northern Ireland if noble Lords were to remove them unduly.

Before coming to the main argument, let me address briefly amendments in this group which would fall if the clauses in Part 5 are removed by your Lordships. First to fall will be Amendment 161, tabled by the noble and right reverend Lord, Lord Eames. I am grateful for having been able to discuss these issues with both the noble and right reverend Lord and the right reverend Primate. Their amendment would require the Secretary of State to publish a statement on the impact on peace and reconciliation in Northern Ireland before regulations on export declarations and other exit procedures under Clause 44 can be made. As I have just underlined, central to any exercise of those powers would be our aim to ensure that the political and economic integrity of our whole United Kingdom is maintained, and that the Belfast agreement and successor agreements and the gains of the peace process are protected in all potential circumstances.

Above all, I so agree with the most reverend Primate and the right reverend Prelate that we must ensure that the delicate balance between all communities in Northern Ireland is maintained and the UK Government pursue policies for sustained economic growth and stability in Northern Ireland—the best route to sustaining peace, as the noble Lord, Lord Morrow, just reminded us. The statement that these have always been, and will remain, the Government’s priorities applies to all clauses of this Bill, not just Clause 44. Therefore, the Government do not consider it is necessary for this further step to be introduced, but we fully appreciate and endorse the motives and concerns of the opposers so powerfully spoken to by the noble and right reverend Lord, Lord Eames.

Amendments 158 and 159, introduced by my noble friend Lord Callanan, would ensure that the UK Government and the devolved Administrations can continue, as they do now, to respond to serious threats to the health of people or animals, a principle already reflected in Schedule 1. I trust that the House will accept the principle of these important amendments to protect people and accept that they are necessary for the health and safety of us all. They will fall today if your Lordships remove Clause 43.

I turn to Amendments 162 and 163 in the name of the noble Lord, Lord Hain. The Government agree with the noble Lord’s aims, and I hope that I can provide reassurance that the Bill already provides the protection he seeks. We are unequivocally committed to delivering unfettered access for Northern Ireland goods to the UK market. The Bill, unless that protection is struck out by your Lordships today, prevents any new checks or controls on those goods, thus ensuring that Northern Ireland goods have unfettered access—and, of course, those goods will not be subject to tariffs.

We are also working with the Northern Ireland Executive and businesses to ensure the next phase of the regime, which will come into force during 2021, focuses benefits specifically on Northern Ireland business, again as the noble Lord, Lord Hain, and his supporters are asking. The amendment aims at much the same outcome as the Government does, but I submit that the benefit of our approach is that we can ensure unfettered access without burdensome requirements on business and do so as part of the regime that applies right across the United Kingdom.

On Amendment 163, again I recognise the noble Lord’s aims, but this amendment would risk tying the Government’s hands on how best to support businesses trading between Great Britain and Northern Ireland in future. The trader support service is, as the noble Lord’s amendment asks, free at the point of use and is part of the extensive programme to support businesses impacted by these new processes. While we have set out that it will be reviewed after two years, I assure the noble Lord, Lord Hain, and the noble Baroness, Lady Suttee, that this is by no means a guillotine on its operation. Legislating prior to review would not be best practice; circumstances will evolve, impacting the nature and best focus of any support that may be required. I hope that the points I have made provide assurance that these amendments are unnecessary. While we are ready for further engagement, I hope the noble Lord feels able not to press his amendment.

I turn to Amendments 179 and 180 in the name of my noble friend Lady McIntosh of Pickering, which seek to amend Clause 56 in Part 7 to ensure your Lordships’ House, as well as the other place, would be required to approve a Motion before Clauses 44, 45 and 47 can commence. The process provided for in Clause 56 operates in line with precedent that has been set in recent years for significant votes, such as the meaningful votes on the previous Prime Minister’s withdrawal agreement and votes on military action, such as the Syria vote in 2013. It ensures—and I hope my noble and learned friend Lord Clarke of Nottingham has read the Bill—that a mandate from the democratically elected House should be the basis for proceeding or not while respecting the important voice this place should have in a take-note Motion. That is the right balance, and I ask my noble friend not to press her amendments.

I return to the core of the debate: the view of many of your Lordships that Part 5, considered, amended, approved and sent to us by the elected House, has no place in this Bill. The Northern Ireland protocol is clear that Northern Ireland is part of the UK customs territory, and our manifesto was clear that we would

“maintain and strengthen the integrity and smooth operation of our internal market”.

Clause 42, which the noble and learned Lord, Lord Judge, declared “contaminated”, delivers on that commitment. The Bill requires that, when exercising functions relating to implementation of the protocol or movement of goods within the United Kingdom, all authorities must have special regard to three fundamental matters:

“the need to maintain Northern Ireland’s integral place in the United Kingdom’s internal market … the need to respect Northern Ireland’s place as part of the customs territory of the United Kingdom; and … the need to facilitate the free flow of goods between Great Britain and Northern Ireland”.

Article 6 of the Northern Ireland protocol states:

“Nothing in this Protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom's internal market.”


This clause delivers on those provisions in the protocol, in our Command Paper in May and in the Government’s manifesto. I see no contamination; I see clarity. In my judgment, it would be a serious matter for your Lordships to remove it.

United Kingdom Internal Market Bill

Lord Falconer of Thoroton Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 18th November 2020 Lords Chamber

[Lord Wigley (PC) [V]]

My Lords, it is a delight to follow the noble Lord, Lord Bourne, with whom I served in the National Assembly 20 years ago and who has done a good hard day’s work for Wales. We do not always agree, but we certainly agree on the need for us to work together whenever possible in the interests of Wales and the wider interest represented in this Chamber.

I rise to support Amendments 38 and 51, to which I have put my name. I will also speak to Amendment 1, moved so effectively by the noble and learned Lord, Lord Hope. The House is indebted to him for the diligent and convincing work he did in Committee and has done on earlier legislation before this House. He has highlighted the need to establish an acceptable mechanism for facilitating a harmonious working relationship between the four Governments of these islands in the context of the UK common market. The noble Baroness, Lady Finlay, has also been diligent in pursuing these points, and has warned graphically today about the iron curtain that will fall if the Bill goes forward unamended. I know that several colleagues will have received representations from the Welsh Government on these and associated matters.

I will not restate the detailed arguments in favour of the common frameworks. I am sure that I am not the only Member participating in this debate who is, by now, heartily sick of having to restate time and again the same old arguments concerning the relationship between the devolved Governments and the Westminster Government in the context of the post-Brexit world that we inhabit. I am sure that noble Lords from England are tired of hearing the same issues arise time after time—as they have in a succession of Bills and debates over the last four years—about how new legislation to create appropriate manufacturing, farming and trading relationships between Wales, Scotland, Northern Ireland and England will work out, how a level playing field may be established and how differences may be resolved without undermining either the integrity of the UK market or the authority of the devolved Governments within their own devolved competences. Both need to be achieved, but the Government address only the first: the integrity of the UK market.

Members of this Chamber from Wales are heartily sick of having to press the same issues time after time for the simple reason that they still have not been resolved. Colleagues from Scotland and Northern Ireland may well feel likewise. The Minister is no doubt equally tired of having to trot out the same old responses. The debates continue because the uncertainty continues and, even now, six weeks before the end of the transition period, we still do not know what the trading parameters applicable from 1 January next year will be.

If that uncertainty were not enough, this week, the Prime Minister described devolution as a disaster. The tragedy of the post-devolution era is that Westminster still has not adjusted its mindset to accept that it now has to work in partnership, not as a domineering and patronising big brother that always expects to get its own way. It is that failure, more than anything else, that now stands to blow the United Kingdom apart, and it is central to this amendment.

It is facile to blame the SNP for advocating the policy that is, after all, their raison d’être. The far more relevant question is why, in every election since 2003, have the SNP secured the support of the Scottish electorate to govern Scotland? It is no use the Prime Minister shooting the messenger; he must ask himself, as must all his colleagues in government: how is it that such a clear message from Scotland has come about? One element in the answer to that is Brexit and, in particular, the failure of the Government to put forward an acceptable model for the post-Brexit trading relationships within the United Kingdom. This amendment offers them an opportunity to put that right.

Once again, these amendments seek to establish a partnership in which, as the noble and learned Lord, Lord Hope, described, there is a system of framework agreements that can help to ensure that one Government will not overrule the other three Governments on matters where responsibility is now returning from Brussels. I am glad that the noble and learned Lord, Lord Mackay of Clashfern, has his name to these amendments because, through the passage of this Bill and earlier legislation impinging on these matters, he has consistently advocated to join common frameworks. He understands how important this is in a Scottish context for such a provision to be included; indeed, he understands the reservations that many Members of the Scottish Parliament, across party lines, have with this Bill as it currently stands.

I am glad that the noble Lord, Lord Bourne, added his name to this amendment and was delighted to hear him speak from his personal experience. As former leader of the Conservatives in the National Assembly, as it was then, he understands the need to get this right. He also understands the thinking among Senedd Members in Wales today. There is enough cross-party agreement in Cardiff, Edinburgh, Belfast and Westminster that this area needs to be revisited and that the Government, surely, must move to make some accommodation along the lines of these amendments. I hope that the Minister is in a reflective mindset and, indeed, a conciliatory mood today, and that he will be positive in his response.

[Lord Falconer of Thoroton (Lab)]

It is a pleasure to follow the noble Lord, Lord Wigley, and a real privilege and honour to follow the speeches of the noble and learned Lords, Lord Hope of Craighead and Lord Mackay of Clashfern, the noble Baroness, Lady Finlay of Llandaff, and the noble Lord, Lord Bourne of Aberystwyth. They were speeches of real quality, and they got absolutely to the heart of the problem that had been identified in the Commons—indeed, identified time and again.

Everybody accepts the need for trade that is as frictionless as possible within the internal market of the UK. Everybody equally respects the need for appropriate divergence. How are those two matters to be dealt with? The answer, which everybody in this House and the Commons agreed with, was the common frameworks process, set up by the Conservative Government, with the agreement of the devolved Assemblies, in October 2017. It is a process that has stood the test of time and works to deliver divergence by agreement.

I note in passing that the noble and learned Lord, Lord Mackay of Clashfern, said that he often led the noble and learned Lord, Lord Hope of Craighead. However, one thing that the noble and learned Lord, Lord Hope of Craighead, did not learn from the noble and learned Lord, Lord Mackay of Clashfern, was emollience. However, the trenchant language used by the noble and learned Lord, Lord Hope, today was appropriate. He said that “actions speak louder than words”. He said that if we are to believe the commitments repeated in the last 24 hours by the Government on devolution, they need to deliver on their promise that the common frameworks process should be allowed to complement the internal market arrangements.

The noble and learned Lord, Lord Hope of Craighead, said that, without some amendments to this Bill, it would be a “misuse of language” to say that they complement each other. I beg to suggest that what he meant by that is that if you have only the market access principles and no legal recognition of the common frameworks process, that process is completely ignored because—to use the language of the noble Baroness, Lady Finlay of Llandaff, in an earlier part of the proceedings on this Bill—this is a “blunderbuss” that, in the words of the noble and learned Lord, Lord Hope of Craighead, does not allow for a key part of the functioning of devolution, namely divergence in the appropriate case.

We on this side of the House support Amendments 1, 38 and 51. We think they do give effect to the common frameworks in a legally binding way, without in any way undermining the need for a properly functioning internal market—the need for which we recognise. I earnestly ask the Government, on behalf of this side of the House, to do what they kept saying they would do: find a solution to the problem. It is so important, not just for the proceedings of this Bill but for the preservation of the devolution settlements in Wales, Scotland and Northern Ireland, and the preservation of the union.

[Lord Wallace of Tankerness (LD) [V]]

My Lords, it is a great privilege to follow all the speeches so far, which have so compellingly made the case for the common frameworks process. I wish to speak in favour of the amendments in this group, which have been spoken to so effectively by the noble and learned Lord, Lord Hope of Craighead. These are amendments which, rightly, seek to give effect and primacy to decisions agreed under the common frameworks process. I regret that it was not possible for me to join the Committee stage proceedings, but I have read the Official Report of the first-class discussion of similar amendments debated on 25 October.

The issue of common frameworks and the lack of any recognition in this Bill of their existence, let alone their importance, goes to the heart of many of my profound misgivings about this proposed legislation. As has been noted several times in the past and already several times today, the creation of the common frameworks process can be traced back to the Joint Ministerial Committee declaration on 16 October 2017. Among the principles set out in that communique was that:

“Common frameworks will be established where they are necessary in order to: enable the functioning of the UK internal market, while acknowledging policy divergence”—


and the noble and learned Lords, Lord Hope and Lord Falconer of Thoroton, emphasised the words “policy divergence”. Among the other principles was that:

“Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore … maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules”.


Crucially, and to state the obvious, that declaration was agreed by the United Kingdom Government and the devolved Administrations.

The importance of such agreement being reached was recommended by the conclusions of the European Union Committee of the House, which, in its fourth report of the 2017-19 Session, said:

“Any durable solution will need the consent of all the nations of the United Kingdom, and of their elected representatives.”


It went on to say that

“A successful settlement cannot be imposed by the UK Government: it must be developed in partnership with the devolved Governments.”


The Government themselves acknowledge in their most recent report, published only a few weeks ago, that

“the UK Government and devolved administrations have continued to work jointly to develop UK Common Frameworks, to protect the UK economy and give maximum certainty to businesses, consumers and international partners”,

and, notably, that United Kingdom Ministers commend UK common frameworks as ensuring

“regulatory coherence across the UK by flexibly managing any potential policy divergence across the four nations.”

United Kingdom Internal Market Bill

Lord Falconer of Thoroton Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 9th December 2020 Lords Chamber

[Lord Newby (LD)]

My Lords, it is a great pleasure to be able to support the noble and learned Lord, Lord Judge, again in his amendments before your Lordships’ House. These amendments will remove the stain of illegality from the Bill, and we should be grateful that that is what we are going to achieve this afternoon—but in doing so, they also let the Government off the hook. Were it not for the ability of this House to ask the Commons to think again, and to give a pause, the Government would now still be wriggling on the hook, because this would not be a Bill any more, but an Act, and we would be stuck with those illegal clauses, which would have caused longer-lasting damage to the reputation of this Government, and of this country, than will, I hope, now be the case.

I am amazed by the coincidence that just by chance, yesterday, after months of toil, Minister Michael Gove reached an agreement. It seems like an extraordinary coincidence, but when we read what he says about it, we see that there is no coincidence at all. This so-called agreement, in which everything is allegedly resolved, is simply a point in the negotiations at which it was appropriate for the UK Government to announce some progress. Although a number of principles have been agreed, the letter that we received from the noble Lord, Lord True, says that

“The parties have also reached an agreement”


on the issues on which decisions have still to be taken

“before 1 January.”

That is the agreement in principle, on some quite significant things, including

“the practical arrangements regarding the EU’s limited and light touch presence in Northern Ireland when UK authorities implement checks and controls under the Protocol, determining criteria for goods to be considered “not at risk” of entering the EU when moving from Great Britain to Northern Ireland, thereby ensuring that the overwhelming majority of goods will not attract tariffs”.

So there is quite a bit of substance there.

Among the substance is, first, that there will be EU officials based in Northern Ireland, at the ports, checking that our customs officers are doing their jobs—something that, I believe, the Government said at an earlier stage they would never countenance. There will also be— because the letter says so—checks and controls on goods moving from Northern Ireland to the rest of the UK. Indeed, one of the principles that has been agreed is the detail of the export declarations.

There is also the possibility—although obviously, this will apply only if there is no deal—of tariffs being applied to some goods moving from Great Britain to Northern Ireland and vice versa. If the noble Lord, Lord Dodds, thinks he has unfettered access, he needs to read what the Government are doing. Every declaration takes time. Every declaration costs money. Every declaration fetters trade.

The dilemma that a number of noble Lords have referred to, which this agreement merely seeks to amplify, is where we have the border. There has to be a border; it could be on the island of Ireland or in the Irish Sea. We as a country have decided, in the agreements that we have made, that it will be a border in the Irish Sea. There should be no question but that that border exists or that there are checks across any customs border —and they cost, which means that trade is fettered.

We will no doubt spend many happy hours discussing these detailed issues in future, but for today we should simply be grateful that the stain on our legislation, at least, if not the entire stain on our reputation, has been removed by the amendments tabled by the noble and learned Lord, Lord Judge, and accepted by the Government.

[Lord Falconer of Thoroton (Lab)]

We are in a much better place now, thanks to the Statement made by the Chancellor of the Duchy of Lancaster yesterday, and the statement made by the noble Lord, Lord True, to us today. The effect of what the noble Lord is proposing is that all the unlawfulness is stripped out of Part 5. He proposes that parts of Part 5 remain in the Bill, but none of those parts can legally overtop the withdrawal agreement entered into in 2020, as the Government of the United Kingdom agreed at the time to legislate so that the withdrawal agreement, including the Northern Ireland protocol, could trump everything except primary legislation that purported to overrule it.

Now, as a result of what the noble Lord, Lord True, has said, the Government accept that there shall be no provisions in the Bill that can overtop the withdrawal agreement, which they agreed to give direct effect to. They have gone back to the position they committed themselves to with the European Union.

I completely respect what the noble Lord, Lord Dodds, and the noble Baroness, Lady Hoey, have said. They have issues with the Northern Ireland protocol. They are both right when they say that Northern Ireland is being treated differently, for reasons that have been widely debated. But that is not what these issues, in this Bill, are about. For better or worse, this Parliament, earlier, had agreed to the Northern Ireland protocol and the withdrawal agreement.

Why did we see the Government try to escape from the provisions of the Northern Ireland protocol? I cannot remember whether it was the noble Baroness, Lady Hoey, or the noble Baroness, Lady Fox, who said that it meant that their troops were marched up to the top of the hill and then marched down again. The reason given was that the Government feared what the European Commission might do in the negotiations.

Let me tell the House how the Chancellor of the Duchy of Lancaster described the attitude of the European Commission in these negotiations. He described Maroš Šefčovič, the vice-president of the Commission, and his team as displaying

“their pragmatism, their collaborative spirit—and their determination to get a deal done that would work for both sides.”

If that was the attitude of the Commission, it is difficult to see why we needed those provisions.

I agree with everything that the noble Lord, Lord Newby, said about this being an agreement in principle, not a locked-down agreement, as is much more candidly accepted in the letter sent by the noble Lords, Lord True and Lord Callanan, to Members of this House this morning, than it was by the Chancellor of the Duchy of Lancaster.

Later, in the Statement that he made earlier today, the Chancellor of the Duchy of Lancaster said:

“the agreement we have reached also enables the Government to withdraw clauses 44, 45 and 47 of the United Kingdom Internal Market Bill … Having put beyond doubt the primacy of the sovereignty of this place … we rest safe in the knowledge that such provisions are no longer required.”

I understand him to be saying that putting in these provisions and then running scared from them when it looked as if they might stand in the way of a trade deal constitutes putting beyond doubt the primacy of the sovereignty of this place. That is absolute nonsense.

I agree with what my noble friend Lord Adonis said, and I am glad that the Government have retreated. However, what they did has damaged the position of this country, and shows a terrible misjudgement. I am glad that the noble Lord, Lord True, has been so gracious in his withdrawal, and we are all grateful for it—but it would have been so much better if the Government had been straightforward about why they did this. They did it because they know they cannot get a trade deal without withdrawing those clauses. I do not know whether they will get a deal, but they hope for one and they cannot get one without withdrawing them. That is why it has been done—and it was done today because this House is debating this today.

Although I apologise to the noble Baroness, Lady Fox, for the fact that some attention has been paid to the Lords, I am glad that she is here to help the Lords influence the Government, which is what it does. It is because the Lords stood firm that constitutional crisis is averted. A good message is sent by the work of the noble and learned Lord, Lord Judge, and I single out the noble Lord, Lord Howard, for his stalwartness in standing up for the principle. If we had not, goodness knows what a mess this Government would have got this country into. We send a message that there are certain principles we will stand up for and will not be moved from.

United Kingdom Internal Market Bill

Lord Falconer of Thoroton Excerpts

Consideration of Commons amendments
Monday 14th December 2020 Lords Chamber

[Lord Newby (LD)]

My Lords, this is the last knockings on Part 5 of the Bill. It has been a sad and sorry saga from beginning to end. The Government understandably drew huge opprobrium, both domestically and internationally, for being prepared to break the law. They have now withdrawn in the best way they can, but the truth is that they have done so with their tail between their legs. I am extremely pleased that we have reached this point, but sorry that the Government ever put Part 5 in the Bill in the first place and that it needed your Lordships’ House to help kick it out.

[Lord Falconer of Thoroton (Lab)]

The noble Lord, Lord True, has been true to his word. He has produced Clause 43A, which does not contain any element of illegality, as the noble and learned Lord, Lord Judge, said. I also agree with the noble and learned Lord that it is a sensible provision and we welcome it. It brings to an end a saga for which this country has plainly paid a price. Everybody commenting on the position of the European Union at the moment is saying that the reason it is currently seeking the arbitral and consultation provisions, and the threshold for the ratchet up, is that it does not trust us—and one of the reasons for that is the internal market Bill and its illegality.

[Lord True (Con)]

My Lords, the noble and learned Lord opposite always has a delightful habit of ending his eloquent speeches with a couple of sentences that I find it hard to agree with, and I do not agree with his interpretation there. But I thank those who have contributed to this short debate. I am grateful for the welcome for the Government’s proposal—I do not talk about tails between legs—and that the other parts of Part 5, to which your Lordships objected before, have been accepted. As perceived from this side of the House, that was the correct action.

I need not repeat the essence of this. Clause 43A is required in the Bill because, as the noble and learned Lord, Lord Falconer, said, it is an important part of implementing the protocol. The clause places a duty on the Secretary of State to provide guidance. I welcome the fact that the EU has clarified that subsidies are within the scope of Article 10 only under the conditions that I described—a genuine and direct link to Northern Ireland and a real, foreseeable impact on trade between Northern Ireland and the EU. This addresses the risk of reach-back and must be reflected in the guidance that the Government will provide.

I am also, of course, grateful for the remarks of the noble and learned Lord, Lord Judge. In concluding, I will emphasise, as he did, that this approach is fully in accordance with the United Kingdom’s commitments under the Northern Ireland protocol and international and domestic law.